Transcript: Attorneys Talk Libby on 'FNS'

The following is a transcript from "FOX News Sunday" that aired on Oct. 30, 2005.

(BEGIN VIDEO CLIP)

SPECIAL COUNSEL PETER FITZGERALD: He was just passing gossip from one reporter to another at the long end of a chain of phone calls — it would be a compelling story that would lead the FBI to go away if only it were true. It is not true according to the indictment.

(END VIDEO CLIP)

CHRIS WALLACE, HOST: That was Special Counsel Patrick Fitzgerald (search) talking about what he says was the false testimony of former White House official Scooter Libby (search).

Joining us now to help sort out what comes next in this case, former independent counsel Robert Ray, who investigated Whitewater and Monica Lewinsky during the Clinton years. He joins us from Fox News in New York.

And here in Washington, criminal defense lawyer William Taylor, who represented a White House chief of staff to President Clinton.

And, Gentlemen, welcome to both of you. Thanks for coming in today.

CRIMINAL DEFENSE ATTORNEY WILLIAM TAYLOR: Nice to be here.

FORMER INDEPENDENT COUNSEL ROBERT RAY: Good morning.

WALLACE: Mr. Ray, looking at the indictment as a former prosecutor, how strong a case does Fitzgerald seem to have against Scooter Libby?

RAY: It's a speaking indictment, which means it's a pretty detailed reference point for the allegations that are based upon the facts that Mr. Fitzgerald uncovered over a two-year span of time.

And his performance before the media at the end of the week was, if nothing else, compelling. So he's obviously attempting to make a very strong case. I will say also, though, that he resisted the temptation to overcharge this case, and he stuck with the heartland, obstruction of justice, false statements and perjury.

WALLACE: Mr. Taylor, looking at the indictment as a defense lawyer, Fitzgerald claims to have more than a half dozen witnesses, both on the one side top U.S. officials and on the other side three reporters, all of whom to some degree contradict, allegedly, Libby's story. As a defense lawyer, how do you get around that?

TAYLOR: Well, it's not always the number of witnesses but what they have to say. This is a case about a very simple question, whether Mr. Libby lied about a very simple fact, and that is where he got the information that he discussed.

And if he got it from reporters, as he said he did, then he's not guilty. If he got it from White House sources, then, apparently, he is.

WALLACE: Well, no, no, I think he's saying something else. I think he's saying well, it turns out maybe I did get it from officials. Let's put up, in fact, what Libby's lawyer, Joseph Tate, had to say. Let's put that up on the screen.

He said, "As lawyers, we recognize that a person's recollection and memory of events will not always match those of other people, particularly when they are asked to testify months after the event occurred. This is especially true in the hectic rush of events at a busy time for our government." So it seems to me that what Libby or Libby's lawyer is saying is well, maybe he got it wrong, but it was an honest mistake, and he's a busy man.

TAYLOR: Well, if so, then he's not guilty. This is all about what he knew and when he knew it. When he gave his testimony, when he spoke to the FBI, did he know he was not telling the truth? And of course, Mr. Rove's lawyer had that same problem and realized that there was a mistake and had Rove go back into the grand jury.

So under these circumstances, what's remarkable to me is how history repeats itself. Public officials don't get indicted for what they're being investigated for but get indicted for the way they handle the investigation.

WALLACE: Let me ask the former prosecutor, Mr. Ray, I guess it's called the busy executive defense. How do you think that flies?

RAY: Well, it's a failure of recollection defense, I guess, you know, at a fairly high level. It depends. I mean, obviously, here the presumption of innocence applies. There may well be a trial. Mr. Fitzgerald will have to prove this case unanimously before a jury beyond a reasonable doubt, a very high standard.

But the failure of recollection defense has to be weighed against not just simply the testimony of three reporters, and this leak investigation has been taken farther than any other, but also there are contemporaneous records, Mr. Libby's notes, e-mails, so on and so forth.

So all of that evidence will be weighed, and Mr. Fitzgerald laid out before the public a good bit of what that evidence is likely to look like.

WALLACE: Mr. Ray, what do you think are the chances of a plea bargain in this case, and if you were the prosecutor, would that depend on whether or not Libby was willing to give information on other top officials in the White House?

RAY: Well, not speaking directly about this case, but, obviously, in any case in which a federal prosecutor brings charges, at the indictment stage, that's the beginning of the process. This is going to go on for months. There will be pretrial maneuvering on both sides.

If there is ever a trial in this case, it's many months, if not, you know, at least a year away. You would be looking for additional information. Mr. Fitzgerald signaled quite pointedly that the investigation continues. And obviously he would be anxious to find out whatever Mr. Libby might know.

But Mr. Libby, of course, has constitutional rights, and if he chooses to remain silent and defend himself and rely on the presumption of innocence and go to trial, he has every right to do that.

WALLACE: Mr. Taylor, what about Karl Rove? And you mentioned him briefly before. Fitzgerald says that the investigation is not over. Rove's lawyer, Robert Luskin, says the prosecutor has made no decision whether to charge Rove.

Help us understand in the real world, is that just boilerplate for a case that's basically done, or do you think that Rove remains in real legal jeopardy here?

TAYLOR: Prosecutors don't like to do things like this piecemeal. If there were going to be an indictment of Rove, I would have expected it to occur simultaneously with the Libby indictment. Having said that, Mr. Fitzgerald says the investigation is ongoing, so you have to take him at his word.

WALLACE: What's your sense of that, Mr. Ray? Do you think that Rove is off the hook and that this is just boilerplate when they say — I mean, investigations are always ongoing — or do you think that he still faces some threat out there?

RAY: I think you have to look at Mr. Fitzgerald's body language, and I would disagree with Senator Dodd that Karl Rove is about to be indicted. I don't think that was the signal that Mr. Fitzgerald was sending at all.

If anything, what he was signaling was absent extraordinary circumstances that he couldn't imagine at least at this stage — he made a decision not to prosecute Mr. Rove, and while there may be a cloud somewhere out there, it's certainly at very high altitude. I don't think that Mr. Rove is seriously in jeopardy at this point any longer.

WALLACE: Mr. Taylor, there was a lot of talk in the prosecutor's news conference about why he charged Libby with lying and not with the underlying crime of leaking classified information or blowing the cover of Valerie Plame.

Given, as I read the indictment, that Libby got classified information and appeared to know about it, because there's a mention in the indictment that at one point he's talking to another White House official and says we can't talk about this in a non-secure phone, why do you think it was that he charged him with lying, not leaking?

TAYLOR: I don't know. I think the obvious reason is he didn't think he had the elements of the case, and those usually have to do with the knowledge and intent of the defendant, but I think — and only Mr. Fitzgerald and the grand jury know the answer to that question.

WALLACE: Mr. Ray, your best sense of why, given the facts that are laid out in the case, he charged him with lying, not leaking.

And also, how do you speak — and it was certainly a question that was asked of Mr. Fitzgerald, but it's also being brought up, I think particularly by Republicans in this town, that somehow there's something that wasn't turned up or something in the investigation that's lacking because of the fact that the charge was just for lying.

RAY: We can't be certain. But you asked for my best sense. My best sense is that Mr. Fitzgerald was reluctant to get into a situation where he would be accused of overcharging this case. The classified information statute sweeps quite broadly, and it bumps up against the First Amendment.

It raises some very difficult questions about which cases you decide to prosecute and which ones you don't. And as far as the covert status, the undercover operative statute, I think probably Mr. Fitzgerald came to the conclusion, which is what he appeared to signal at the press conference, that he simply didn't have the proof that anyone actually knew of her covert status.

And failing that proof, or at least being unable to exclude a hypothesis of innocence, I think he decided to exercise his judgment and stay out of that and go with what it is he feels confident that he can prove in the area of obstruction and the related charges, perjury and false statements.

WALLACE: Mr. Ray, Mr. Taylor, we want to thank you both for joining us today and taking us through where the case stands at this point.